EXHIBIT 24.3
98
ESCROW AGREEMENT
AGREEMENT made this _____ day of _______________, 19__, by and among
Northwood Services, Inc., a Pennsylvania corporation, with its principal offices
at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (the "Corporation"), and
Mellon Bank of Pittsburgh, Pennsylvania, (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Escrow Agent has been advised that the Company is organized
under the laws of the State of Pennsylvania and
WHEREAS, the Escrow Agent has been advised that the Company is authorized
to issue 10,000,000 shares of Common Stock, having no par value; and
WHEREAS, the Escrow Agent has been advised that the Company has filed with
the Securities and Exchange commission (the "SEC") a registration statement on
Form S-1 (the "Registration Statement") pursuant to the General Rules and
Regulations under the Securities Act of 1933, as amended (the "Act"), covering a
proposed public offering (the "Offering") of 1,000,000 shares of the Company's
securities at an offering price of $6.00 per share.
WHEREAS, the Escrow Agent has been advised that the Company proposes to
offer the shares and warrants (hereinafter "securities"), through agents who are
NASD Broker/Dealers, for sale to the public on a "best efforts, 1,000,000 shares
or none: basis; and
WHEREAS, in compliance with Rule 240.15c2-4 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended, the Company
and the Underwriter propose to establish an escrow account with the Escrow
Agent; and
WHEREAS, the Escrow Agent is willing to establish an escrow account on the
terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained the parties hereby agree as follows:
1. Establishment of Escrow Account. Prior to the date on which the
Registration Statement is declared effective (the "Effective Date") by the SEC,
or as soon as practicable thereafter, the parties hereto shall establish, and by
execution of this Agreement hereby agree to establish, a non-interest bearing
escrow account with a designated branch of the Escrow Agent, which escrow
account shall be entitled, Mellon Bank, as Escrow Agent for Subscribers to
Northwood, Inc." (the "Escrow Agent").
2. Deposits into the Escrow Account. The Agents promptly shall deposit all
monies received from prospective purchasers of the securities (the "Fund") in
the Escrow Account.
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Such deposits, properly made payable to the order of "Mellon Bank", as Escrow
Agent", shall be delivered to the Escrow Agent before 12:00 P.M. on the next
business day following receipt by the Agents of payments by subscribers for the
securities. Simultaneously with each such deposit, the Agents shall inform the
Escrow Agent, by confirmation slip or other writing, of the name and address of
each prospective purchaser and of the number of securities subscribed for by
such purchaser. In this regard, the Escrow Agent shall have the right to rely
fully on the confirmation slips or other writings so furnished by the Agents.
Promptly after the SEC shall declare the Registration Statement effective, the
Corporation shall advise the Escrow Agent in writing of the Effective Date.
3. Disbursements from the Escrow Account.
(a) In the event that the Escrow Agent does not receive $6,000,000 (which
represents the proceeds from the sale of 1,000,000 shares from the Agents
for deposit in the Escrow Account within 90 business days from the
Effective Date (which period may be extended for an additional 90 business
days by mutual consent of the Company and the Underwriter, upon the
furnishing of written notice thereof to the Escrow Agent jointly signed by
the Company and the Agents), the Escrow Agent shall refund to each
prospective purchaser the amount actually received from such purchaser,
without interest thereon or deduction therefrom, and the Escrow Agent shall
notify the Agents and the Company of its distribution of the Fund.
(b) In the event that the Escrow Agent receives the $6,000,000 from the
Agents for deposit in the Escrow Account within 90 business days from the
Effective Date (which period may be extended for an additional 90 business
days pursuant to (a) above), the Escrow Agent shall notify the Corporation
of such fact in writing within a reasonable time. The Escrow Agent shall
hold such monies in escrow, until given instructions in writing by the
Company and the Agents as to the disposition of the Fund and such other
documents as may be necessary in the opinion of the Escrow Agent.
(c) Upon the disbursement of the Fund pursuant to either (a) or (b) above,
the Escrow Agent will be under no further responsibility with respect to
this Agreement. In this regard, it expressly is agreed and understood that
in no event shall the aggregate amount of payments made by the Escrow Agent
exceed the amount of the Fund.
4. Rights, Duties and Responsibilities of Escrow Agent. It is understood
and agreed that the duties of the Escrow Agent are purely ministerial in nature.
It is further agreed that:
(a) The Escrow Agent shall not be required to enforce any of the terms or
conditions of the Agency Agreement or any other agreement between the
Agents and the Company, nor shall the Escrow Agent be responsible for the
performance by the Agents or the Company of their respective obligations
under this Agreement;
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(b) The Escrow Agent shall not be required to accept from the Agents any
confirmation slips or other writings issued to prospective purchasers
hereunder unless the same are accompanied by cash, checks, drafts or other
instruments for the payment of money, nor shall the Escrow Agent be
required to keep records of any information on checks, drafts or other
instruments received or collected by the Escrow Agent from the Agents
except as to the amount of same; however, the Escrow Agent shall notify the
Agents within a reasonable time, by wire or otherwise, of any discrepancy
between the amount set forth on any such confirmation slip or other writing
and the sum, or sums, delivered to the Escrow Agent by the Agents
therewith;
(c) The Escrow Agent shall be under no duty or responsibility to enforce
collection of any check, draft or other instrument for the payment of money
delivered to it hereunder, but the Escrow Agent, within a reasonable time,
shall return to the Agent any check, draft or other instrument received
from the Agent which is dishonored, together with the confirmation slip or
other writing, if any, which accompanied such check, draft or other
instruments;
(d) The Escrow Agent shall have the right to act in reliance upon any
document, instrument or signature believed by it to be genuine and to
assume that any person purporting to give any notice or instructions in
accordance with this Agreement or in connection with any transaction to
which this Agreement relates has been duly authorized to do so. The Escrow
Agent shall not be obligated to make any inquiry as to the authority,
capacity, existence or identity of any person purporting to give any such
notice or instructions;
(e) In the event that the Escrow Agent shall be uncertain as to its duties
or rights, hereunder or shall receive instructions with respect to the Fund
which, in its sole opinion, are in conflict with either other instructions
received by it or any provision of this Agreement, it shall be entitled to
hold the Fund, or a portion thereof, in the Escrow Account pending the
resolution of such uncertainly to the Escrow Agent's sole satisfaction, by
final judgment of a court or courts of competent jurisdiction or otherwise;
or the Escrow Agent, at its option, may deposit the Fund in the registry of
a court of competent jurisdiction in a proceeding to which all parties in
interest are joined;
(f) The Escrow Agent shall not be liable for any action taken or omitted
hereunder except in the case of its willful misconduct, nor shall it be
liable for the default or misconduct of any employee, agent or attorney
appointed to it. The Escrow Agent shall be entitled to consult with counsel
of its own choosing and shall not be liable for any action taken, suffered
or omitted by it in accordance with the advice of such counsel; and
(g) The Escrow Agent shall have no responsibility at any time to ascertain
whether or not any security interest exists in the Fund or any part thereof
or to file any financing statement under the Uniform commercial code with
respect to the Fund or any part thereof.
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5. Amendment; Resignation. This Agreement and/or the terms of the Offering
may be altered or amended only with the written consent of the Corporation, the
Agents and the Escrow Agent. Should the Company and/or the Agents attempt to
change the Agreement and/or the terms of the Offering in a manner which, in the
Escrow Agent's sole opinion, is undesirable, the Escrow Agent may resign as
Escrow Agent upon 5 days written notice to the Company and the Agents. In the
case of the Escrow Agent's resignation, its only duty shall be to hold and
dispose of the Fund in accordance with the original provisions of this Agreement
until a successor Escrow Agent shall be appointed and written notice of the name
and address of such successor Escrow Agent shall be given to the Escrow Agent by
the Company and the Agent, whereupon the Escrow Agent's only duty shall be to
pay over to the successor Escrow Agent the Fund, less any portion thereof
previously paid out in accordance with this Agreement.
6. Warranties. The Company and the Agent warrant to and agree with the
Escrow Agent that, unless otherwise expressly set forth in this Agreement:
(a) No party other than the parties hereto and the prospective purchasers
have, or shall have, any lien, claim or security interest in the Fund or
any party thereof;
(b) As of the date of this Agreement, the Registration Statement has ben
declared effective by the SEC; and
(c) No financing statement under the Uniform Commercial Code is on file in
any jurisdiction claiming a security interest in or describing (whether
specially or generally) the Fund or any part thereof.
7. Fees and Expenses. The Escrow Agent shall be entitled to a fee of
$_________________ for services rendered by it as Escrow Agent. The Escrow Agent
also shall be reimbursed by the Company and the Agent for any reasonable
expenses incurred in connection with this Agreement, including, but not limited
to, reasonable counsel fees.
8. Indemnification and Contribution.
(a) The company and the Agents (collectively referred to as the
"Indemnitors") jointly and severally agree to indemnify the Escrow Agent
and its officers, agents, directors and stockholders (jointly and severally
the "Indemnitees") against, and hold them harmless of and from, any and all
loss, liability, cost, damage and expense, including, without limitation,
reasonable counsel fees, which the Indemnitees may suffer or incur by
reason of any action, claim or proceeding brought against the indemnitees,
arising out or relating in any way to this Agreement or any transaction to
which this Agreement relates, whether or not any such action, claim or
proceeding is the result of the negligence of the Indemnitees. If any
person shall assert any claim (whether or not by the institution of any
action, suit or other proceeding) against any of the Indemnitees arising
out of this Agreement or any transaction to which this Agreement relates,
whether or not such claim ultimately is established, the Indemnitors shall
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pay all costs and expenses of the defense of such claim, including, without
limitation, reasonable counsel fees, liability, cost, damage and expense
against which the Indemnitees are indemnified hereunder, all sums which any
of the Indemnitees may pay in settlement of any such claim.
(b) If the indemnification provided for in this Section 8 is applicable,
but for any reason is held to be unavailable, the Indemnitors shall
contribute such amounts as are just and equitable to pay (or to reimburse
the Indemnitees for) the aggregate of any and all losses, liability, costs,
damages and expenses, including counsel fees, actually incurred by the
Indemnitees as a result of or in connection with, and any amount paid in
settlement of, any action, claim or proceeding arising out of or relating
in any way to any acts or omissions of the Indemnitors.
(c) The Escrow Agent shall have a lien upon the Fund to the extent of all
losses, liabilities, damages, costs or expenses, including reasonable
counsel fees, for which it is to be indemnified hereunder and for all fees
due it hereunder. In the event of any claim, action or proceeding against
the Indemnities relating to this Agreement or any transaction to which this
Agreement relates or if any fee due the Escrow Agent hereunder shall remain
unpaid, the Escrow Agent may retain the Fund or any part thereof until the
Escrow Agent's lien upon the Fund shall have been determined and satisfied
or secured adequately, in the sole opinion on the Escrow Agent.
(d) Any Indemnitee which proposes to assert the right to be indemnified
under this Section 8, promptly after receipt of notice of commencement of
any action, suit or proceeding against such Indemnitee in respect of which
a claim is to be made against the Indemnitors under this Section 8, will
notify the Indemnitors of the Commencement of such action, suit or
proceeding, enclosing a copy of all papers served, but the omission so to
notify the Indemnitors of any such action, suite or proceeding shall not
relieve the Indemnitors from any liability which they may have to any
Indemnitee otherwise than under this Section 8 in case such action, suite
or proceeding shall be brought against any Indemnitee and it shall notify
the Indemnitors of the commencement thereof, the Indemnitors shall be
entitled to participate in and, to the extent that they shall wish, to
assume the defense thereof, with counsel satisfactory to such Indemnitee,
and after notice from the Indemnitors to such Indemnitee of their election
so to assume the defense thereof the Indemnitors shall not be liable to
such Indemnitee for any legal or other expenses, other than reasonable
costs of investigation subsequently incurred by such Indemnitee in
connection with the defense thereof. The Indemnitee shall have the right to
employ its counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such Indemnitee unless (i) the
employment of counsel by such Indemnitee has been authorized by the
Indemnitors, (ii) the Indemnitee shall have concluded reasonably that there
may be a conflict of interest among the Indemnitors and the Indemnitee in
the conduct of the defense of such action (in which case the Indemnitors
shall not have the right to direct the defense of such action on behalf of
the Indemnitee) or (iii) the Indemnitors in fact shall not have employed
counsel to assume the defense of such action, in each of which cases the
fees and expenses of counsel shall be borne by the Indemnitors.
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9. Governing Law and Assignment. This Agreement shall be construed in
accordance with and governed by the laws of the State of Pennsylvania and shall
be binding upon the parties hereto and their respective successors and assigns;
provided, rights under this Agreement or with respect to the Fund shall be void
as against the Escrow Agent unless:
(a) written notice thereof shall be given to the Escrow Agent, and
(b) The Escrow Agent shall have consented in writing to such assignment or
transfer.
10. Notices. All notices required to be given in connection with this
Agreement shall be sent by registered or certified mail, return receipt
requested, and addressed to: the company at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, XX
00000, and the Escrow Agent Attention: Trust Department: Mellon Bank,
Pittsburgh, PA.
11. Severability. The application thereof to any person or circumstance
shall be determined to be invalid or unenforceable, the remaining provisions of
the Agreement or the application of such provision to persons or circumstances
other than those to which it is held invalid or enforceable shall not be
affected thereby and shall be valid and enforceable to the fullest extent
permitted by law.
12. Execution in Several Counterparts. This Agreement may be executed in
several counterparts or by separate instruments, and all of such counterparts
and instruments shall constitute one agreement, binding on all of the parties
hereto.
13. Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural as the context may
require.
14. Captions. All captions are for convenience only and shall not limit or
define the test hereof.
15. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings (written or oral) of the
parties in connection herewith.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
MELLON BANK
By:____________________________
Northwood Services, Inc.
By:____________________________
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